IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Crl. Appeal No. D- 07 of 2014.

Present:

Mr. Justice Ahmed Ali Sheikh.

Mr. Justice Naimatullah Phulpoto.

Ashique Ali Joyo. ………...Appellant.

Versus

The State. ….…..…Respondent.

Mr. Akbar Ali H. Dahar, Advocate for the appellant.

Mr. Imtiaz Ali Jalbani, A.P.G.

Date of hearing: 19.06.2014.

Date of Judgment: 19.06.2014.

J U D G M E N T

Naimatullah Phulpoto, J-. Appellant Ashique Ali Joyo was tried by learned Sessions Judge/ Special Judge (CNS), Larkana, in CNS Case No.02/2013, under Section 9 (c) of the Control of Narcotic Substance Act, 1997. After trial appellant was found guilty and he was convicted under Section 9 (c) of the Control of Narcotic Substance Act, 1997, and sentenced to four years R.I and to pay the fine of Rs.10,000/-, in case of failure to make the payment of fine, he was ordered to undergo S.I for one month more. Benefit of Section 382-B Cr.P.C. was extended to him. Appeal is preferred against aforesaid conviction and sentence recorded by the trial Court.

2. Brief facts of the prosecution case as disclosed in the F.I.R are that on 23.12.2012, ASI Abdul Ghafoor Jamali of PS Waleed left Police station alongwith his subordinate staff, namely, PCs: Imamuddin, Muhammad Saleh, Mehboob Ali and driver PC Abdul Wahab in the government vehicle vide roznamcha entry No.7248 for patrolling duty; while patrolling when the police party reached at Arija Lakro, it was 1930 hours police party saw present accused on the road, he was carrying a shopper in his hand, while seeing the police party appellant tried to run away, but he was surrounded and caught hold. ASI secured plastic bag from his hand in presence of PCs Imamuddin and Muhammad Saleh and conducted his personal search and opened the shopper, it contained four pieces of the charas. On inquiry accused disclosed his name as Ashique Ali son of Rajib Ali by caste Joyo resident of Allah-abad. Accused was arrested in presence of above mashirs; charas was weighed, it was four kilograms. During the personal search of the accused cash of Rs.100/- was also recovered from side pocket of his shirt; charas was sealed at spot. Mashirnama of arrest and recovery was prepared. Accused and property were brought at Police Station, where F.I.R was lodged on 23.12.2012, at 2015 hours by ASI Abdul Ghafoor on behalf of the State, for offences under Section 9 (c) of the Control of Narcotic Substance Act, 1997. Slabs of charas weighing 4000 grams were sent to the chemical examiner, Laboratory Sukkur @ Rohiri on 01.01.2013, for chemical examination and report. After usual investigation challan was submitted against the accused under Section 9 (c) of the Control of Narcotic Substance Act, 1997.

3. A formal charge against appellant was framed at Ex.4, under Section 9 (c) of the Control of Narcotic Substance Act, 1997. Accused met the charge with denial and claimed trial. Prosecution examined at trial PW-1 ASI Abdul Ghafoor at Ex.5. PW-2 P.C Imamuddin Chandio at Ex.6. P.W-3 SIP Ali Hassan at Ex.8. Thereafter, prosecution side was closed by Incharge D.P.P, Larkana, at Ex.9.

4. Statement of the accused was recorded under Section 342 Cr.P.C. at Ex.10, in which accused claimed false implication in this case and denied prosecution allegations and stated that report of the chemical examiner has been managed. Accused raised plea in his statement that on 22.12.2012, when he was coming to attend the Court, he was arrested by the police and such intimation was given to the Court by his mother Mst. Zainab on the same date. He has produced copy of the case diary dated 22.12.2012 at Ex.10-A. Accused did not examine himself on oath in disproof of prosecution case, however he has examined his mother Mst. Zainab in his defence at Ex.11. The learned prosecutor in the trial Court has cross-examined defence witness, but her testimony could not be shattered.

5. A.S.I Abdul Ghafoor deposed that he left police station alongwith his subordinate staff in government vehicle for patrolling and arrested accused on 23.12.2012 at Arija Laro at 1930 hours on torch light and secured plastic shopper from his possession in presence of mashirs, which contained 4000 grams charas. ASI prepared Mashirnama of arrest and recovery and lodged F.I.R against accused on behalf of State. In cross-examination ASI denied suggestion that accused was arrested on 22.12.2012 outside of Court. He has denied suggestion that charas has been foisted upon accused at the instance of SIP Abdul Waheed Abro.

6. P.C Imamuddin has deposed that 4000 grams charas was recovered from the plastic shopper of accused by ASI Abdul Ghafoor, he was made mashir of arrest and recovery. In cross-examination he denied suggestion that accused was arrested on 22.12.2012 outside the Court.

7. PW-3 SIP Ali Hassan has investigated the case. He received copy of Mashirnama of arrest and recovery, copy of F.I.R, custody of accused and case property on 23.12.2012, he visited place of vardat, recorded 161 Cr.P.C statements of prosecution witnesses. Investigation officer dispatched charas to chemical examiner on 24.12.2012, and produced positive chemical report at Ex.8-A. In cross-examination he replied that case property was delivered in the office of chemical examiner on 01.01.2013. Investigation officer has denied suggestion for deposing falsely at the instance of SHO Waheed Abro.

8. D.W-1 Mst. Zainab has deposed that present accused is her son. He was apprehended by Waleed police on 22.12.2012, outside of the Court at the instance of ASI Mir Tunio and SHO Waheed Abro. At that time she was present with her son/accused. She moved an application in Court and produced certified true copy of case diary dated 22.12.2012. In cross-examination she has denied the suggestion for deposing falsely to save her son.

9. Learned advocate for the appellant mainly contended that appellant was arrested by the police from the Court premises on 22.12.2012, such application was submitted by Mst. Zainab, the mother of the appellant to Special Judge CNS, Larkana. He has argued that prosecution case is false, there was delay of ten days in sending charas to chemical examiner. He has further argued that defence evidence has not been considered by the trial Court and prosecution evidence suffers from a number of infirmities and prosecution witnesses according to counsel for appellant were not reliable and conviction is not sustainable in this case.

10. Mr. Imtiaz Ali Jalbani, learned A.P.G. concedes to the contentions raised by learned defence counsel and did not support the conviction recorded by the trial Court.

11. We have carefully scanned the entire prosecution evidence.

12. The prosecution evidence appears to be unnatural and unbelievable for the reasons that police party was making checking at Arija Lakro from where on the torch light present accused was apprehended from the street but police made no efforts to join any private person as mashir in this case. Currency notes recovered from the accused as per prosecution case were also not produced before the trial Court. There was about nine days delay in sending charas to chemical examiner without explanation. Material contradictions regarding mode of recovery of charas have also come on record. Accused has claimed enmity with SHO Waheed Abro. It is admitted by investigation officer that place of recovery is surrounded by houses and shops, inspite of that no independent person has been examined by prosecution. No doubt evidence of police officials is admissible but every case is to be seen in the light of facts of it’s own. Learned trial Court rejected the evidence of the mother of the appellant, only on the ground that she is the mother of the appellant. It is the matter of the record that Mst. Zainab, mother of the appellant submitted application before the trial Court on 22.12.2012, that her son has been arrested outside of the Court while coming to the Court in an other case. Orders were passed on that application by learned Special Judge CNS, Larkana; in-spite of that due weight has not been given to the evidence of Mst. Zainab. In our considered view, application of Mst. Zainab has created reasonable doubt in the prosecution case and defence version is more plausible and nearer to truth, than the case put forth by prosecution. It is settled law that a single circumstance creating doubt in the prosecution case is sufficient to discard prosecution case. Reliance is placed upon case of Mir Muhammad v. The State (2008 M L D 1333). Relevant portion is reproduced as under:

“No doubt official witnesses are admissible, but it does not mean that they are reliable also. Every case is to be seen in the light of facts of its own case. One single circumstance throwing doubt is sufficient to discard prosecution case. Not as a matter of grace or concession but as a matter or right.”

13. For the above stated reasons, while relying upon above cited authority we hold that prosecution has failed to establish its case against the appellant beyond any reasonable doubt; trial Court has failed to appreciate the evidence in accordance with law, therefore, conviction and sentence awarded by the trial Court are not sustainable under the law, as such judgment dated 11^th March, 2014, recorded by the trial Court is set-aside. Appeal is allowed. The appellant shall be released forthwith, if he is not required in some other case. These are the reasons for our short order announced on 19.06.2014.

Judge